A conservatorship is a court appointment for an adult who is incapacitated, missing, detained or unable to return to the United States. The appointment of a conservator gives a person or an organization the responsibility to prevent waste or dissipation of the protected person’s assets; to obtain or provide for the support, care, education or welfare of the protected person or someone entitled to support by the protected person. Conservatorship for adults in Colorado is authorized by Colorado Revised Statues, Title 15, Article 14, Part 4. This section of the statutes was repealed and re-enacted effective January 1, 2001 and is known as the Colorado Uniform Guardianship and Protective Proceedings Act.
A conservatorship is a protective proceeding. The person for whom a conservator is appointed is called a “protected person.” The definition of a protected person is defined as “any individual, for reasons other than age, who is unable to manage property and business affairs because the individual is unable to effectively receive or evaluate information or both or to make or communicate decisions, even with the use of appropriate and reasonably available technological assistance or because the individual is missing, detained or unable to return to the United States.”
The appointment of a conservator or the entry of another protective order is not a determination of incapacity of the protected person. (C.R.S.§15-14-409(4))
A conservator may not serve in dual roles. This means the conservator cannot be the same person or entity as the guardian or the direct service provider and may not employ the same person as both a case manager and direct services provider. Owners, operators or employees of long-term care providers are expressly prohibited from serving as conservator unless related to the respondent by blood, marriage or adoption. (C.R.S.§15-14-413) The court, in appointing a conservator, considers persons otherwise qualified in the order of priority:
Conservator, guardian or like fiduciary appointed by the court of another jurisdiction;
A person nominated by the respondent in a durable power of attorney;
An agent appointed by the respondent under a durable power of attorney;
An adult with whom the respondent has resided for more than six months.
Bond is mandatory unless the court makes specific findings as to why a bond is not required in the particular case. (C.R.S.§15-14-415)
Appointment of a conservator vests title in the conservator. (C.R.S. §15-14-421) However, this does not sever joint tenancies. A conservator has the powers to continue, modify or revoke a financial power of attorney, unless limited in the order. All agents under financial powers of attorney must cease any further action under the power of attorney without the conservator’s specific authorization. The conservator may also require the agent to report and account for actions taken under the power of attorney. If the protected person owns real estate, the Letters of Conservatorship should be recorded in the county where the property is situated to give notice of title between the conservator and the protected person.
The interest of the protected person in property vested in a conservator is not transferable or assignable by the protected person. An attempted transfer of the property by the protected person is ineffective but may give rise to a claim against the protected person. Property vested in the conservator and the interest of the protected person are not subject to levy, garnishment or other claims unless incurred by the conservator or presented as a claim in essentially the same manner as for a decedent’s estate. However, if the protected person transfers personal property for substantially equivalent value to an individual unaware of the conservatorship who acted in good faith, the individual is protected as if the protected person or transferee had valid title.(C.R.S.§15-14-422)
If there’s a substantial conflict of interest between the conservator’s fiduciary and personal interest in a given transaction, that transaction is voidable unless expressly authorized by the court. This includes any sale, encumbrance or other transaction involving the conservatorship estate entered into by the conservator, the spouse, descendant, agent or lawyer of a conservator, or a corporation or other enterprise in which the conservator has a substantial beneficial interest. (C.R.S. §15-14-423)
A conservator may, after notice and only with express court approval, gift, convey, release or disclaim, create, revoke or amend trusts; exercise rights and change beneficiaries under retirement plans, insurance policies and annuities; and exercise rights to elective shares. Of particular note is the conservator’s authority to make, amend or revoke wills. (C.R.S.§15-14-411)
A conservatorship terminates on the death of the protected person, or upon an order determining that the conservatorship is no longer necessary.